New York Law Review

Tag: Hate Crime

  • People v. DeLee, 24 N.Y.3d 603 (2014): Repugnant Verdicts and the Remedy of Retrial

    People v. DeLee, 24 N.Y.3d 603 (2014)

    When a jury renders a repugnant verdict by convicting a defendant of a crime containing all the elements of another crime for which the defendant was acquitted, the prosecution may retry the defendant on the repugnant charge.

    Summary

    Defendant was convicted of first-degree manslaughter as a hate crime but acquitted of first-degree manslaughter. The New York Court of Appeals held that the verdict was repugnant because the elements of first-degree manslaughter are included in the elements of first-degree manslaughter as a hate crime. The Court modified the Appellate Division’s order, holding that the People could resubmit the charge of first-degree manslaughter as a hate crime to a new grand jury, rather than dismissing the charge altogether. This decision clarifies the remedy for repugnant verdicts in New York, allowing for retrial on the repugnant charge rather than automatic dismissal, balancing the need to avoid convictions where the jury found an element lacking with the jury’s prerogative to show leniency.

    Facts

    Dwight DeLee was indicted for second-degree murder as a hate crime, second-degree murder, and third-degree criminal weapon possession. At trial, the jury convicted him of first-degree manslaughter as a hate crime and weapon possession, but acquitted him of first-degree manslaughter. Defense counsel argued that the verdict was inconsistent, but the trial judge initially dismissed the jury. The judge later recalled the jury to confirm their acquittal on second-degree manslaughter before finally dismissing them.

    Procedural History

    Prior to sentencing, DeLee moved to set aside the verdict as repugnant, which the trial court denied. The Appellate Division modified the judgment, reversing the conviction for first-degree manslaughter as a hate crime and dismissing that count. The Appellate Division reasoned that the acquittal of first-degree manslaughter meant the jury found at least one element of that crime unproven, making the hate crime conviction logically inconsistent. The dissenting Justice argued the verdict was not repugnant. The People appealed to the New York Court of Appeals by permission of the dissenting Justice.

    Issue(s)

    Whether a jury verdict convicting a defendant of first-degree manslaughter as a hate crime, while acquitting him of first-degree manslaughter, is repugnant.

    Whether the remedy for a repugnant verdict is dismissal of the repugnant conviction or whether the People may resubmit the charge to a new grand jury.

    Holding

    Yes, because all of the elements of first-degree manslaughter are included in the elements of first-degree manslaughter as a hate crime, making the verdict inconsistent.

    The People may resubmit the charge of first-degree manslaughter as a hate crime to a new grand jury because there is no constitutional or statutory provision that mandates dismissal for a repugnancy error.

    Court’s Reasoning

    The Court of Appeals applied the established principles of People v. Tucker and People v. Muhammad, stating that a verdict is repugnant when it is legally impossible for the jury to have convicted on one count but not the other. The court emphasized that repugnancy depends on the jury’s instructions and the essential elements of the crimes charged, not on the evidence presented at trial. The court reasoned that in this case, the jury’s acquittal of first-degree manslaughter necessarily meant that they found at least one element of that crime unproven, which is inconsistent with the conviction for first-degree manslaughter as a hate crime, which requires all the elements of the former. The court stated, “All of the elements of first-degree manslaughter are included in the elements of first-degree manslaughter as a hate crime. Thus, to find the defendant not guilty of first-degree manslaughter necessarily means that at least one of the elements of first-degree manslaughter as a hate crime was not proved beyond a reasonable doubt.”

    Regarding the remedy, the Court acknowledged its prior statement in Muhammad that the remedy for a repugnant verdict was dismissal of the repugnant conviction. However, the court clarified that this statement was dictum and that there is no constitutional or statutory provision mandating dismissal. The Court reasoned that allowing a retrial on the repugnant charge strikes a reasonable balance because a reviewing court can never know the reason for the repugnancy and because juries may freely reject evidence and exercise its mercy function. The court cautioned trial courts that when “a trial court finds that an announced verdict is repugnant, it may explain the inconsistency to the jurors and direct them to reconsider their decision”.

  • People v. Slavin, 1 N.Y.3d 392 (2004): Admissibility of Tattoos as Evidence of Motive and the Fifth Amendment

    1 N.Y.3d 392 (2004)

    The Fifth Amendment’s protection against self-incrimination does not bar the admission of photographs of a defendant’s tattoos as evidence of motive, as tattoos are considered physical characteristics and their creation is not compelled by the state, even if they reflect the defendant’s thoughts.

    Summary

    Christopher Slavin was convicted of hate crimes after attacking two Mexican laborers. Over his objection, the prosecution introduced photographs of Slavin’s numerous offensive and racially charged tattoos to demonstrate his motive. The New York Court of Appeals affirmed the conviction, holding that the tattoos were physical characteristics, not compelled testimony, and therefore admissible despite Slavin’s Fifth Amendment claims. The court reasoned that the state did not compel Slavin to create the tattoos, and they were thus akin to pre-existing documents that can be used as evidence, even if incriminating.

    Facts

    Christopher Slavin lured two Mexican day laborers with a false promise of work and drove them to an isolated location. During the drive, he questioned their ethnicity. Upon arrival, Slavin and an accomplice brutally attacked the men. Slavin struck them with a metal post-hole digger, while the accomplice stabbed one of them. The victims escaped and were rescued by a passing motorist.

    Procedural History

    Slavin was indicted, and he moved to dismiss the indictment and preclude the use of photographs of his tattoos at trial, arguing Fourth, Fifth, and Sixth Amendment violations. The trial court denied the motion, and the People were permitted to take a second set of photographs. Slavin was convicted of attempted murder, assault, and aggravated harassment. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the trial court violated the defendant’s Fifth Amendment privilege against self-incrimination by admitting photographs of his tattoos, taken over his objection, as evidence of motive for committing a hate crime.

    Holding

    No, because the tattoos were physical characteristics, not compelled testimony, and the state did not force Slavin to create them; therefore, the admission of photographs of the tattoos did not violate his Fifth Amendment rights.

    Court’s Reasoning

    The Court of Appeals reasoned that the Fifth Amendment protects against compelled testimony, not against the use of physical characteristics as evidence. Relying on Schmerber v. California, the court stated that the privilege protects an accused from being compelled to testify against himself or provide the State with evidence of a testimonial or communicative nature. The court emphasized that while the tattoos may have reflected Slavin’s inner thoughts, he was not compelled to create them by the state.

    The court analogized the tattoos to pre-existing documents, noting that the Fifth Amendment does not protect the contents of such documents, even if incriminating, because their creation was not compelled. The court distinguished this case from situations where the act of producing evidence has testimonial aspects, such as admitting the existence or authenticity of documents, because the prosecution was already aware of the tattoos’ existence.

    The dissent argued that the tattoos were offered to prove Slavin’s state of mind and were therefore testimonial, thus violating his Fifth Amendment rights when he was compelled to reveal them. The dissent likened the forced removal of clothing to a strip search and argued that it constituted a greater invasion than a subpoena. The dissent also noted that the tattoos were covered by clothing, negating any claim that photographing them was part of routine arrest processing. Further, the dissent asserted that the second set of photographs taken pursuant to CPL 240.40 was unauthorized as the statute applies to non-testimonial evidence only.

    The majority countered that even if the second set of photographs was improperly authorized, there was no prejudice as the first set was admissible. Ultimately, the court held that Slavin was not compelled to be a witness against himself, as the tattoos were created voluntarily and the expert witness only testified as to the customary meaning of the images, without offering an opinion on Slavin’s thoughts during the attack.